IMPORTANT POINT
Seizure of Ganja – For determining weight of Ganja, to bring under small or medium or commercial quantity, it cannot be bifurcated by removing seeds and leaves and it cannot be a ground for quashing criminal proceedings.

ORDER

This petition is filed by the petitioner-accused No.2 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.340/2021 (old C.C. No.234/2020) pending on the file of Principal Civil Judge (Sr. Dn.) and CJM Court, Chennagiri, for the offences punishable under Sections 20(a)(i), 20(b)(ii)(A) of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) registered by Basavapatna Police Station, Davanagere.

2. Heard the arguments of learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.

3. The case of prosecution is that on the suo moto complaint by the respondent-police on 21.03.2019, the case was registered. It is alleged that when the police officer Devaraj T.V. was in the CEN Police Station, he got credible information that some persons selling ganja in the jurisdiction of Basavapatna police station. Immediately, he recorded first information and registered FIR against unknown person and he along with police staff, apprehended the accused Nos.1 and 2. When they searched the accused, they found that the accused were in possession of 750 grams of Ganja and the same was seized under the panchanama in the presence of panchas. After investigation, charge sheet came to be filed against the accused persons, which is under challenge.

4. Learned counsel for the petitioner has contended that as per the seizure panchanama, the seized material is not ganja, which has only leaves and seeds totally 750 grams, therefore, it does not fall under the definition of Section 2(iii)(b) of NDPS Act. The seized material cannot be considered as ganja in order to bring under the provisions of the NDPS Act. Therefore, prayed for quashing the criminal proceedings. In support of his arguments, the learned counsel for the petitioner has relied upon the judgment of Mehaboob Daula @ Daula and others Vs. The State of Karnataka and another passed in Criminal Petition No.8192/2016 decided on 02.01.2017.

5. Per contra, learned High Court Government Pleader appearing for respondent No.1 State objected the petition and contended that the ganja contains leaves, fruiting tops, seeds, stems and it cannot be bifurcated at the time of seizure and therefore, it is contended that, even if the leaves are removed, the quantity of Ganja will come down and therefore, that itself is not a ground to quash the criminal proceedings. The matter is under trial. Hence, prayed for dismissing the petition.

6. Having heard the learned counsel for the parties, perused the records.

7. The main contention of the learned counsel for the petitioner is that the seized ganja of 750 grams is containing the leaves and seeds which is not considered as ganja as per the provisions of Section 2(iii)(b) of the NDPS Act. In order to verify the same, it is worth to mention the provisions of Section 2(iii)(b) of the NDPS Act. Section 2(iii)(b) : Cannabis (hemp) means Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;

8. If we read the definition, ganja which excludes the seeds and leaves, contains flowering or fruiting tops of cannabis plant. In the complaint especially seizure panchanama, which reveals that the bag in possession of the petitioner looked like a leaf, but it contained the flower, fruiting top, leaves and seeds. Considering the same, it not only contains the seeds and leaves, but also accompanying the flowering and fruiting tops. Therefore, the material seized is containing flowering and fruiting tops accompanying the seeds and leaves which amounts to Ganja i.e., the leave and seed accompanied with flowering or fruiting tops of the cannabis plant. It falls under ganja. The conclusion is only the leaves and seeds not accompanied, then it cannot be considered as ganja. In order to exclude the definition of ganja, the seeds and leave